Senator Cory Booker of New Jersey is interviewed. The Supreme Court heard oral arguments today in the latest case championed by Republicans to try to strike down the Affordable Care Act. MSNBC continues its coverage of the coronavirus pandemic.
CHRIS HAYES, MSNBC HOST: I feel the exact same way.
Olivia Troye and Dr. Peter Hotez, thank you for making time tonight.
That's ALL IN on this Tuesday night.
"THE RACHEL MADDOW SHOW" starts right now with Ali Velshi in for Rachel.
Good evening, Ali.
ALI VELSHI, MSNBCH HOST: Good evening, Chris. Thank you.
And thank you at home for joining us this hour.
Rachel is still in quarantine after a close contact tested positive for COVID-19.
Today, as the Supreme Court heard arguments in a case that could gut Obamacare and strip health care from millions of Americans, President-elect Joe Biden took the stage at the Queen Theater in Wilmington, Delaware, to make the case for the health care bill he and President Obama shepherded into law. And he promised that as president, come January, he will fight for Americans' health coverage.
Also today, the Biden-Harris presidential transition announced its transition teams for the various federal agencies. "The Washington Post" describes the teams as, quote, a list of 500 experts in federal policy from diplomacy to space exploration who will form the backbone of Biden's preparations to lead the federal government in January, learning from the workforce what to expect at every agency on personnel, technology, policy and program matters.
And why wouldn't Joe Biden be preparing? He won the election.
As votes continue to be tabulated, Biden's popular vote lead today neared 4.7 million votes, a more than 3 percent margin over Donald Trump. The last time a challenger ousted a first-term president by a margin bigger than that was when FDR unseated Herbert Hoover in 1932.
So, that's it. Let's call that earth one. Some might just call it reality. Joe Biden won the election by a decisive margin and is going about the business of setting up his administration.
And then there's earth two.
(BEGIN VIDEO CLIP)
REPORTER: Is the State Department currently preparing to engage with the Biden transition team? And if not, what point does a delay hamper a smooth transition or pose a risk to national security?
MIKE POMPEO, U.S. SECRETARY OF STATE: There will be a smooth transition to a second Trump administration.
(END VIDEO CLIP)
VELSHI: That was Donald Trump's secretary of state today. I would play you the comments from the president himself, except we don't have any because we haven't heard from the president in a few days except, of course, on Twitter where he frequently posts things in all caps like, we will win!
The Trump administration is now in day three of refusing to sign off on any transition resources for the president-elect's team. Normally, those transition teams that Joe Biden announced today would go start getting the lay of the land at the various federal agencies. But the Trump administration literally won't let them in the door.
The Office of the Director of National Intelligence today said that it will have no contact with the Biden transition, the Office of National Intelligence. Classified intelligence briefings are routine for president-elects but not this time.
The White House has instructed federal agencies to continue preparing President Trump's budget proposal for the next fiscal year. That's a proposal that would be issued in February.
One administration official telling "The Washington Post," quote, they're pretending nothing happened. We're all supposed to pretend this is normal and do all this work while we know we're just going to have to throw it away, end quote.
The Trump administration is reportedly also continuing to vet new political appointees for jobs in a second Trump term. This after the White House warned any current political appointees that they will be fired if they are caught looking for a new job because why would you need a new job if this administration is continuing into a second term.
A day after firing the defense secretary, President Trump has installed loyalists in several Pentagon top jobs today. The new acting defense secretary's chief of staff will be Kash Patel, who is mostly known for helping Republican Congressman Devin Nunes in his attempts to discredit the Russia investigation.
Trump also installed a guy as undersecretary of defense for policy whom he tried and failed to put into the Pentagon earlier this because he was too controversial even for the Republican Senate. This "Politico" headline sums it up. Official who once called Obama a terrorist leader takes over Pentagon policy. Okay. That's Defense.
Let's go over to the Justice Department. No one quite knew what to make of Trump's attorney general issues a memo yesterday authorizing the federal prosecutors to immediately start investigating voter fraud. But the long-time career official in charge of the Justice Department's elections crime branch thought the memo was bad enough that he stepped down from his post because of it. It is just increasingly so weird.
Even as the Biden transition back over here on earth one is staffing up a new administration for the guy who won, the Trump White House over here on earth two is cleaning house for a second term in office or something.
Do they think that if they pretend the election didn't happen Joe Biden's just going to go away? And is it that Trump and his allies are just being in delusional denial? Or is it something more sinister, a new plan to stay in office and use the Defense Department and the Justice Department to make that happen?
I mean, did Trump fire his defense secretary as an act of political spite, because he wanted to punish him for a perceived lack of loyalty or was there something very, very bad that Donald Trump wanted Mark Esper to do but he wouldn't so he removed him? Is Mike Pompeo just kind of joking about a second Trump administration to keep the boss happy and needle the press? Is Bill Barr just issuing memos that will keep the president and his base happy but won't result in any action?
With this flurry of personnel changes at the Pentagon and the National Security Agency, is Trump trying to install loyalists who will remain and cause trouble in a Biden administration, which would be bad enough? Or is he trying to use the defense and intelligence apparatus to actually do something in the next 71 days?
At "The Washington Post" tonight, David Ignatius reports there's a fierce battle underway inside the administration over declassifying intelligence about, what else, Russia. In this version of events, Trump is installing loyalists across the national security apparatus because he wants help releasing information that he thinks will undermine the conclusion that Russia interfered in the 2016 election to help him because Trump is still obsessed with that, even in the waning days of his presidency.
Whatever the reason, none of this is good. The question seems to be is it just bad or is it really, really bad? At least one person is professing not to be concerned at all about what the Trump administration is up to right now. And that person is Joe Biden.
(BEGIN VIDEO CLIP)
JOE BIDEN (D), PRESIDENT-ELECT OF THE UNITED STATES: We are already beginning the transition. We're well underway. And the ability for the administration in any way by failure to recognize our win does not change the dynamic at all and what we're able to do. We announced yesterday, as you know, the health group we put together. Today, we're going to be going, moving along in a consistent manner, putting together our administration, the White House, and reviewing who we're going to pick for the cabinet positions. And nothing's going to stop that.
So I'm confident that the fact that they're not willing to acknowledge we won at this point is not of much consequence in our planning and what we're able to do between now and January 20th. We're going to do exactly what we would be doing if he had conceded and said we had won, which we have. So, there's nothing really changing.
REPORTER: But not ruling out legal action?
BIDEN: No, I don't see a need for legal action, quite frankly. I think the legal action is -- you're seeing it play out. The actions he's taking. And so far, there is no evidence of any of the assertions made by the president or Secretary of State Pompeo. Secretary of State Pompeo.
REPORTER: What do you say to the Americans that are anxious over the fact that President Trump has yet to concede and what that might mean for the country?
BIDEN: Well, I just think it's an embarrassment, quite frankly. The only thing that -- how can I say this tactfully? I think it will not help the president's legacy.
REPORTER: How do you expect to work with Republicans if they won't even acknowledge you as president-elect?
BIDEN: They will. They will.
Thank y'all so very much.
(END VIDEO CLIP)
VELSHI: All right. That's Joe Biden broadcasting reassuringly from earth one, where he is president-elect and everything is moving along just fine. But like I said, there's this whole other world inside the White House moving along in parallel where everyone is pretending none of this is actually happening. Eventually, I'm wondering whether these two worlds have to collide. How worried should we be about this?
Joining me now is Vanita Gupta. She's president and CEO of the Leadership Conference on Civil and Human Rights. She's also the former head of the civil rights division in the Obama Justice Department.
Ms. Gupta, good to see you again. Thanks for making time to be here tonight.
Let me just pick up where we left off here. We've got these two parallel universes. Where do they head in your opinion?
VANITA GUPTA, FORMER HEAD OF CIVIL RIGHTS DIVISOIN AT THE DEPARTMENT OF DEFENSE : So, I think there's one earth, Ali. And the other one is some bizarre satellite floating out there. I don't think we should give it credence.
Look, there's a lot of us didn't except Trump to concede. So, none of this is strange or new. In fact, we predicted this very scenario. But the fact of the matter is all of these legal tactics, the Barr memo, the litigation that is losing in courts around the country, the aim really is about disruption -- disruption, disinformation, sowing chaos, seeking to undermine the Biden win where American voters decided this election. They overwhelmingly voted for Biden. Nothing that any of these tactics and rhetoric are going to do is going to change that.
On January 20th, President Biden will take his seat and President Trump will exit the White House. And so, we have to make sure that we are understanding these antics for what they are. They are aimed at creating fear that, you know, there's some nefarious plot that somehow Trump will not leave. The choice isn't his, and American voters clearly decided this election.
VELSHI: I want to pull up an article I was reading in the "New York Times" entitled -- "The Times" called officials in every state: no evidence of voter fraud. It quotes from an official, Franklin Rose, a Republican who serves as secretary of state who says there's a great human capacity for inventing things that aren't true about elections. The conspiracy theories and rumors run rampant. Fro some, elections breed that type of mythology.
But the fact is, that reporting by "The New York Times" and our reporting here at NBC and everybody else's reporting is that there is slow counting going on, there are complexities from mail-in ballots, but no fraud. There's no large scale fraud being alleged and no small scale fraud being alleged except by Donald Trump and Rudy Giuliani and folks like that.
GUPTA: Yeah. I mean, don't forget that in 2016, an election that Trump actually won, he was claiming even then that 3 million to 5 million people had voted illegally. No evidence to back it up.
GUPTA: He started a scam commission that also didn't find any evidence. I feel like we've all been saying the same thing for years and years and years. And today, "The New York Times" asked a bunch of officials and they're saying the same thing too.
The DOJ dragnet witch hunt, whatever it is, for PR purposes, is going to find the same thing. It really doesn't amount to anything. We should keep our focus on.
This is all very intentional. It's a shame, of course, and a disgrace that it is taking Republicans so long to actually just call B.S. to be honest with you. It seems like a lot of them are doing this to placate the president. I don't think that's acceptable. But every day, more and more are coming out and congratulating the president-elect for -- President-elect Biden for his win.
But this is -- I don't -- do I think this is good for democracy? No. Do I think it's aimed at undermining confidence, especially among Trump voters, in a Biden win and to undermine faith in a Biden administration?
Yes. That is harmful. I'm not going to deny that. I don't think this is good for our democracy. I don't think it's good for our country. It is an embarrassment. At the end of the day, does it change the result? Absolutely not.
And a lot of us believe this is exactly what Trump was going to do either 70 days until -- I think until January 20th. We're going to have to put up with a lot of this.
But as President-elect Biden said today, you know, folks are moving forward. We've got over 10 million cases in this country of COVID since it arrived on our shores. People are still dying.
There's work to do. There's an agenda -- a substantive agenda to plan for and get ready for a cabinet that believes in science and facts that actually upholds the missions of the agencies. That it's going to be a new day and we have to just be kind of looking forward on that, given that American voters decided and all of this is pure distraction, noise, and bluster.
VELSHI: Vanita, good to see you again. Thank you for being with us.
Vanita Gupta is the president and CEO of the Leadership Conference of Civil and Human Rights. She's the former head of the civil rights division in the Obama Justice Department.
Thanks for your time tonight.
Joining me now, Ben Rhodes, deputy national security adviser under President Obama.
Ben, I want to have a similar conversation with you about the national security apparatus, because there's a little bit of question here of what's going on. There's understandable fear on the part of observers about whether Donald Trump is just playing games with changing people around in the national security and defense establishment or whether he's playing with the military because he thinks he wants to stay in office and expects them to help him do so?
Give me some evaluation of what you think is going on on the military and national security side?
BEN RHODES, MSNBC POLITICAL ANALYST: Well, Ali, here's my evaluation. The people that he's elevated to these roles at DOD and the National Security Agency are not the kind of people you would turn to to start a war or even to use the military to somehow stay in power. These are the same conspiracy theorists that worked for Devin Nunes that have been trying to undermine the Russia investigation since the beginning of his administration.
It includes the guy who moved that infamous Ukraine call under a secret server to try to hide it. It includes the guy who came up with the theory that it was unmasking done by Obama officials that was the root of the Russia investigation. These have been debunked theories.
So, to me, the signal he's sending is less he's going to use the military to stay in power and more he's going to use the remaining time in office to continue to try to validate in some fashion his conspiracy theories by selectively releasing classified information.
That's what this is about. It's about trying to exonerate Donald Trump for the reality that Russia helped him get elected in 2016.
RHODES: And it's about trying to undermine the incoming Biden administration in some right wing cloud conspiracy theory scandal.
VELSHI: So, that's the better news. Of the two options I gave you, that's the better one, that he's not planning to use the national security apparatus and the military to stay in office.
But how bad is that? I mean, Vanita just made the point it's not good for democracy. It's not good generally speaking for the country.
But in the end, is it work that can be undone? Donald Trump is using his last 71 days to rile up his base and to have conspiracy theories spread around and that will work in the social media, but in the end will it matter?
RHODES: I think it's really bad, Ali, for a few reasons. Number one, these people are completely incompetent and unqualified. They have no business running the United States military, the Pentagon, one of the largest -- perhaps the most powerful institutions in the world. And you've got a bunch of conspiracy theorists in charge.
What if there's a crisis? What if something happens around the world that requires a response of the United States government? And the people left in charge are these people? That's problem one.
I think problem two is that relentless conspiracy theorizing. You talk about earth one and earth two. But look, a lot of our fellow Americans live in the information ecosystem of earth two, and if they're going to be filled with conspiracy theory and hate, that's going to seek to de-legitimize Joe Biden. That's going to seek to kind of wander this information into perhaps Republican Senate and have investigations, and that's going to undermine this nation's capacity to solve problems, and further divide us, right?
VELSHI: You touch on something really interesting, Ben. Sorry. I didn't want to interrupt you. But you did touch on something interesting.
The point of a peaceful transition of power is that the world knows that's how it's going to be so don't mess with the United States between election day and inauguration day because it's all good, we've got this thing sewn up, and the two parties are talking to each other. The danger of not sending that message is real.
RHODES: It is absolutely real because there's two things you have to do in a transition. One, maintain the credibility of the United States government so that nobody tests us from a national security perspective. Two, make it easier for the incoming team to hit the ground running on January 20th.
And they're going to do everything they can to prevent that from happening. That's going to hinder our national security because you don't have the capacity of people to get in from the Biden transition team, get under the hood, do the work to get up to speed.
I also say, Ali, it's discrediting these institutions, you know, to have the secretary of state say something about we're going to have a peaceful transition of power, a second Trump administration. He runs the department, the State Department, that usually issues statements expressing concern when foreign officials seek to stay in power through the kinds of means we're seeing.
The United States military, the Pentagon having people like this in charge, it's a discredit to that institution. So, on his way out, Donald Trump is doing what he's done thus far but in a flagrant way. He's kind of debasing and discrediting the United States and putting his own personal interests ahead of the nation.
VELSHI: Ben, as national security adviser, deputy national security adviser, you did deal with the military. And the one thing who's served in the military or is in the military tells me is that there is no discussion and there will be no discussion about the military helping Donald Trump stay in power if on December 13th, as expected, the Electoral College casts its ballots for Joe Biden as the next president of the United States. He will be sworn in on January 20th and the military will play no role in keeping Donald Trump in power.
RHODES: One hundred percent. The United States military wants nothing to do with this. And ever since that fiasco in Lafayette Park where you have the joint chiefs of staff go out and express regret and apologize for being part of that, it's clear the United States military does not want to be put in an uncomfortable position and certainly not by these casts of characters. These people are not in a position to command and direct the U.S. military to do that kind of thing.
So, I think America shouldn't worry Joe Biden isn't going to be president on January 20th. He is. I think there is legitimate reason to worry what these people are up to and how that discredits these institutions, and how that further divides the country in the cesspool of conspiracy theorizing and scandal-mongering that doesn't accomplish anything really except appealing to Donald Trump's desires to set a certain narrative.
VELSHI: As you said last night, it will not be months to heal the damage that has been done. It may be years. Some worry generations.
Ben, you and Vanita make us feel a little safer tonight. Ben Rhodes, deputy national security adviser under President Obama, thank you, sir, for making time to be with us tonight.
All right. Imagine for a second that I had bad ratings one night and my reaction was demanding that the CEO of Nielsen, the company tells TV shows their ratings, should resign. That would be crazy, right?
Well, that's not too far off from what senators are doing after the election results didn't go their way. We'll talk about that on the other side.
VELSHI: All right. Welcome back.
A few of you have asked to I want to clarify something. There is no new news for you to be concerned about with respect to Rachel. Close contact of hers tested positive for COVID a few days ago. Nothing changed tonight. I think I might have worded something in an unusual way at the top of the show that made you think otherwise.
Everything is still the same. Rachel is just quarantining for her own security and for everybody else's. That's why I'm doing the show. Nothing new to worry about.
Let me talk about what I was going to talk about which is people who don't believe there was any fraud in this election, including two Republicans who won their races. Montana Senator Steve Daines and Iowa Senator Joni Ernst today made very clear that nope, there was no fraud in their Senate races. We could probably expect the same line would be taken by North Carolina Republican Senator Thom Tillis who today won his race after his Democratic opponent conceded. So far calls to move on and accept the race have come from just a handful of elected Republicans, most, including the party's top leaders continuing to go along with, if not outright endorse the president's baseless claims of voter fraud.
Mitch McConnell today said Republicans' hesitance to accept the result was neither unusual nor alarming while at the time suggesting Republicans will likely not recognize Biden's electoral victory until the Electoral College meets next month, December 13th.
The number four Republican in the Senate went further suggesting Trump may have actually won the election.
(BEGIN VIDEO CLIP)
SEN. ROY BLUNT (R-MO): The president wasn't defeated by huge numbers. In fact, he may not have been defeated at all.
(END VIDEO CLIP)
VELSHI: Some anonymous GOP officials continue to insist that Senate Republicans are merely humoring the president and Republicans' tight embrace of Trump is driven not by fear but need of his supporters in the two upcoming Georgia runoff contests.
Today, Democratic Senator Chris Coons admitted that some Republican colleagues have privately asked him to congratulate Biden on his win because they can't do so publicly. But the questions remain, just how much damage is being done by congressional Republicans' refusal to accept the election results? And what does it say about the possibility of any meaningful working relationship going forward with a new president-elect?
Joining us now, New Jersey senator and as of today, the new vice chair of the Democratic Policy and Communications Committee, Cory Booker.
Senator, good to see you. Thank you for being with us. Congratulations on your new leadership position.
You know, last time you and I talked, Donald Trump talked about how you were going to go into America's suburbs and mess them up for everybody. I don't know if that's on your plans. But if you could me some insight into what's going on with your Republican colleagues in the Senate right now and why they are hesitant to congratulate Joe Biden because they seem to be believing in private on the down low that he did win the election.
SEN. CORY BOOKER (D-NY): I can't. I really can't. I can't understand those calculations. Clearly, the numbers just don't add up. It was not a close election.
Joe Biden won with the most votes in American history. It was a victory for Joe Biden.
He won the popular vote. Victory for Joe Biden.
He won the Electoral College vote. Victory for Joe Biden.
He won in blue states, so-called purple states, and even picked up some so-called red states. Joe Biden won this election no matter how you look at it. And the baseless claims that have not been proven, the Trump administration has lost legal case after legal case in state after state after state.
And so this is going to be a challenging time because Donald Trump doesn't have many stages of grief. He just has one right now, which is denial. And I think that that is going to mean that this is going to be a very rocky days and weeks ahead.
But amidst it all, you're seeing something really incredible, which is almost a hopeful sign for the resurrection of grace in the White House. You saw Joe Biden today not take shots at the outrageous statements by people like Secretary Pompeo. He didn't even attack Donald Trump.
He showed grace and honor and showed us what our expectations can be for a president that is not going to get into the gutter. You know, you cannot wrestle with a pig without yourself getting muddy.
He's going to try to take all of us, Democrats, Republicans and independents to a higher level by demonstrating what he did today, elements of grace, and honor and decency, and not falling into argument, accusation and reaction.
VELSHI: So, let's explore that for a second because that is Joe Biden. Anybody who knows Joe Biden and you do know that's him. That's his authentic self, right?
But there are some people, including on my Twitter timeline right now and probably yours, who would like to see someone wrestle with the pig because they would like to see it. Because there's a lot more wrestling than we expected.
This may end on December 13th. Maybe then Donald Trump will accept it once the Electoral College has cast its ballots. Until then, it's kind of outrageous.
BOOKER: You know, look, walk the wall and see who we have built monuments to, whether it is Lincoln in the middle of a divided nation, doesn't pile on, but says with malice towards none, with charity towards all.
Take someone like Martin Luther King that didn't beat Bull Conner by bringing bigger dogs and bigger fire hoses, but by calling on the moral imagination of the country to dream, to aspire, to be our best selves.
I really believe that this has got to be a moment we don't see the resurrection of grace in the White House. All of us have to ask ourselves how we can be part of a civic revival of grace as well, because right now, our democracy is hurting. It really is. It is broken. It is bruised. It is wounded.
And what is going to heal it is not simply standing up like I do and other Democrats and say we were right, you're wrong, but finding ways to stand your ground, but also to reach out your hand, a hand of redemption, a hand of healing because if we continue in the way of Donald Trump, we're going to just are continue to tear each other down, which is playing into the hands of our adversaries. The Chinese and Russian media having a field day about the behavior of Donald Trump and the crisis he's causing in our democracy.
We are Americans, and we all need to commit ourselves to the difficult challenge of putting more indivisible back into the one nation under God.
VELSHI: Senator, it's -- may your noble words come true. May that be what actually ends up happening because we can use it. New Jersey Senator Cory Booker, always appreciate your time, sir. Thank you.
BOOKER: Thank you, Ali.
VELSHI: You want to know how long the last few weeks have been?
Justice Amy Coney Barrett was confirmed to the Supreme Court two weeks ago. Today the Supreme Court with newly seated Justice Amy Coney Barrett heard a case that could have an impact on the health care of 20 million Americans.
Supreme Court reporter extraordinaire Nina Totenberg joins us next.
VELSHI: North Dakota has a meter system for tracking risk of contracting COVID across the state. If your county's in the green the risk of contracting COVID is low. Red, of course, is the opposite. In red counties, the virus is widespread, risk of contracting COVID is high.
This is a COVID risk map for North Dakota, last updated by the state yesterday afternoon. The entirety of North Dakota lit up red. The risk of contracting COVID high in 53 of 53 North Dakota counties.
Yesterday, the governor of North Dakota announced hospitals in his state are 100 percent capacity, not just in parts of the state, across the entire state. Hospitals are completely full because of the surge in COVID-positive patients arriving at their doors. The governor says the state is running out of health care staff to tend to all those beds and so is authorizing -- listen to this -- authorizing COVID-positive nurses to care for COVID patients as long as they're asymptomatic.
While the situation is particularly dire in North Dakota, it really is just one snapshot of a picture that's forming across the country tonight. Yesterday, COVID hospitalizations in the United States reached their peak, their highest peak actually since July.
We continue to clock new case records in this country day after day after day. It's clear.
It's against that backdrop that Republicans were back at the Supreme Court today trying to take health care away from tens of millions of people in this country. The Supreme Court heard oral arguments today in the latest case championed by Republicans to try to strike down the Affordable Care Act.
The lawsuit is remarkably backed by the Trump administration. It's a U.S. law. The Trump administration is supposed to be backing that law. They're actually joining the lawsuit against it. If successful, more than 20 million people could be kicked off their health insurance without any alternative.
Put another way, 20 million people who currently have health insurance during an uncontrolled public health crisis would suddenly not have it if Republicans win at the Supreme Court. During oral arguments today, at least five of the nine justices indicated in their remarks that they might reject this latest challenge to the Affordable Care Act.
Those justices included not just the liberal minority on the court but also the Chief Justice Roberts as well as one of the president's picks, Brett Kavanaugh. Now, warning, reading between the lines of justices' questioning is a risky game. This case will not be settled once and for all until the court issues its official ruling sometime between now and next June.
But there's reason for cautious optimism tonight for people who would like the affordable care act to remain the law of the line.
Joining us now, Nina Totenberg, legal affairs correspondent for NPR, and all around Supreme Court whisperer.
Nine, it is great to see you.
Make sense of this for me. We will have seen this once before because Chief Justice Roberts didn't kill Obamacare the last time he had a chance to do using a legal argument about it.
What are we seeing now?
NINA TOTENBERG, NPR LEGAL AFFAIRS CORRESPONDENT: Well, this was a little bit like Groundhog Day. You've been here before. Twice before, there have been cases that were serious challenges to the Affordable Care Act. This was the third one.
And I think at minimum, there appeared to be five justices who clearly weren't ready to strike down the entire law, which is what the Trump administration and a bunch of Republican-dominated states are asking the court to do. And they maintain that it's a very complicated sort of legal question. They maintain that because the Congress in 2017 got rid of the penalty if you didn't have health insurance, that because of that, the tax -- it's no longer a tax. The penalty is no longer a tax, and that's what saved it last time was Chief Justice Robert's vote saying it looks like a tax, it walks like a tax, it is a tax. And the Congress has the power to levy taxes.
Well, it's no longer a tax, they said. And therefore -- therefore -- the law and all the language about a mandate in that single provision of the statute infects essentially the rest of the law. And the whole thing, pre-existing conditions, Medicaid, all those provisions should be struck down at the same time.
And I would say there were five justices who, I think, more than they usually do sent pretty strong signals that they're not buying that argument, that in the words of chief Justice Roberts in another case, that you want to act with a scalpel, not a bulldozer when you're dealing with a congressional act.
VELSHI: Yes. And Justice Kavanaugh said that during oral arguments. He said, quote, it does seem fairly clear that the proper remedy would be to sever the mandate provision, which you were talking about, and leave the rest of the act in place. The provisions regarding pre-existing and the rest. That is what Kavanaugh said.
Chief Justice Roberts made a similar point, saying Congress left the law intact when they lowered the penalty to zero. So, the mandate, the penalty, it's the same terminology. But they're basically saying if that's the problem, they can sever that, get rid of it and the Affordable Care Act, the body of it including the provision to cover pre-existing conditions can remain. And then it would be up to Congress to make it work in some fashion to fund it the way it needs to be funded.
TOTENBERG: Well, and the chief justice said something even more interesting. He said I think they wanted us to strike it down. But that's not our job.
It was a pretty -- it was a pretty telling and somewhat snarky comment aimed, I think, principally at the Trump administration and Republicans in Congress who tried to repeal this act over and over and over again and failed.
VELSHI: I think they tried 50 plus times or something like that, and Roberts is saying this is your job, not ours.
Nina, great to see you as always. Thank you for being with us. Nina Totenberg is NPR's legal affairs correspondent and a Supreme Court expert. Thank you.
TOTENBERG: Thank you. Good night.
VELSHI: All right. Do you know what you're doing? Do you know what you're doing for thanksgiving this year? What are you going to do to make it safe in the middle of this pandemic? It would be helpful to hear what Dr. Fauci is planning to do, and I'll tell you what that is on the other side.
(BEGIN VIDEO CLIP)
DR. ANTHONY FAUCI, DIRECTOR, NATIONAL INSTITUTE OF ALLERGY AND INFECTIOUS DISEASES: Thanksgiving is an important family holiday. I mean, every family is different, Andrea. I mean, if you have someone in the family, an elderly person, a person with an underlying condition who, whatever that underlying condition may be, diabetes, obesity, hypertension, someone on chemotherapy for one reason or another, cancer, autoimmune disease, you really need to make a decision, do I want to put that person at an increased risk by having people coming in from all parts of the country usually in a crowded airport without necessarily knowing if they're infected, without having time to get tested or time to do quarantine? Make your own decision. What kind of risk are you willing to take?
(END VIDEO CLIP)
VELSHI: What kind of risk are you willing to take? That's the question on the nation's top infectious disease expert posed to the entire nation today on the subject of Thanksgiving. It's just over two weeks away. Like we said earlier in the show, things are bad in America right now.
We're well on our way to posting 200,000 coronavirus cases every single day, more than 241,000 people have died from this virus and deaths are increasing nearly every day. With those stats, any hope we might have of returning to pre-pandemic normal by the holiday season is gone. The CDC even updated its Thanksgiving guidance today. The agency is recommending no travel, small gatherings, and virtual family get-togethers for the big day.
The doctor told my colleague Andrea Mitchell that the Faucis for their part will be having a virtual but still festive family meal. But Dr. Fauci also told Andrea we might have a few things to be thankful for after the holiday.
On the question of how and when the Pfizer vaccine might be distributed widely, Fauci said that most people or the people most at risk could possibly get the vaccine by the end of the year. Asked whether he would take the vaccine when it is available to him, here's what he said.
(BEGIN VIDEO CLIP)
FAUCI: Well, I'm going to look at the data. But I trust Pfizer. I trust the FDA. These are colleagues of mine for decades, the career scientists. If they look at this data and they say this data is solid, let's go ahead and approve it, I promise you, Andrea, I will take the vaccine and I will recommend that my family take the vaccine.
(END VIDEO CLIP)
VELSHI: All right. Joining us now, Laurie Garrett, health policy analyst, Pulitzer Prize-winning journalist, columnist on "Foreign Policy" magazine. She'd been my guru for this from the absolute beginning.
Laurie, you published an article today I want to quote from it. In October when the United States was seeing 50,000 new cases per day, the cautious Institute for Health Metrics and Evaluation at the University of Washington predicted that by around inauguration day, deaths could reach 2,200 daily with a cumulative total of 386,000.
But since that October 22nd announcement, the daily infection total has more than doubled and deaths have risen to more than 1,100 per day. If these trends go unfettered for more than 70 days, the United States' official death tally could top 400,000 around Christmas and deaths might exceed 2,500 a day. Hospital wards across the country will be full.
And I've learned from you, Laurie, not to underestimate what you say. You are not an alarmist. Everything that you've said that will happen has happened.
Are you actually worried that this is where we are headed?
LAURIE GARRETT, HEALTH POLICY ANALYST: Absolutely, Ali. And what makes it bone-chilling for me is recognition that we still have 71 days of the Trump administration and they show no inclination to do anything that could slow this train wreck down. And we're looking at states all across America that already have full hospitals, already have exceeded their health care worker personnel.
You know, the thing that's interesting to think about is when you and I first started having these conversations, New York was the epicenter and we had a unique situation here in the tri-state area of the East Coast of the United States. We got through it, a horrible nightmare, but we got through it because doctors and nurses came from all over the country to help us.
Today what we're in is a situation out of control in at least 43 states, almost every place in the country. Every county is showing an increase in this disease. Nobody can spare health care workers. Nobody can spare supplies. Nobody can spare hospital beds.
And I hate to say this because I don't want to sound ghoulish, but we're approaching a point where no one will be able to spare morgue personnel and coroners.
VELSHI: That was the whole issue about the curve. I want to read again from our article about the vaccine.
Let's be clear what this Pfizer study shows so far. For 90 percent of the volunteers who got the vaccine as opposed to the placebo, the infection did not occur for a steady period of seven days. Nothing more is known. If that protection turns out to be for a full year, the Pfizer vaccine might be deemed a spectacular success. But nobody's going to wait a year to find out.
What's the implication of that?
GARRETT: The implication is whether it's this vaccine, the Pfizer product, the next one waiting to get up at bat, the Moderna vaccine or another number of others, we're rushing them through and we're going into widespread use with very, very short-term data.
Now, good news with this one is there's no evidence of side effects. So at least we could probably say it won't hurt anybody, but will it provide protection that really keeps you from getting infected with the virus for the next year or five years or, best yet, the rest of your life? We have no idea.
VELSHI: Yeah. And we don't even know that getting the coronavirus gives you that degree of immunity. The president likes to tell everybody he's super immune or whatever it is that he says, but the science doesn't know as much as that yet.
Laurie, thanks, as always. You and I will continue to talk and we'll continue to give our viewers the best information we can.
Laurie Garret is a health policy analyst, Pulitzer Prize-winning journalist, a columnist to "Foreign Policy Magazine" -- I recommend you read today's article. It's a lot of detail.
Thank you, Laurie, for being with us.
When you become the president of the United States, you get to learn all sorts of important and classified top-secret information. When you leave office, it's not like you unlearn all that information. They can't wipe the drive.
Normally, that's not a problem, but with this president, we should be concerned.
VELSHI: Consider for a second all the times in the last four years that Donald Trump has used his position as president to leak classified information. There was that time just four months into his presidency when he invited the Russian ambassador and foreign minister into the Oval Office. According to multiple reports, Trump proceeded to divulge highly classified code word sensitive information to the two Russians, causing a total freak out among his own career intelligence officials.
Or how about the time Trump decided he wanted to discuss highly sensitive details about North Korea's nuclear weapons program in the middle of an open dining area at his Florida country club where anyone willing to pay the membership fee could just walk right up and listen. At least one club member actually managed to post a few photos from the meeting on his Facebook feed.
There was also that time the president tweeted out a picture of a failed Iranian satellite launch that experts told NBC News was very likely classified.
Or how about just recently when Trump boasted about a secret American weapons system directly to legendary investigative reporter Bob Woodward?
The list goes on and on.
In just 71 days, Donald Trump will transition from president to ex-president, and once that happens, once he leaves office, he will pose a unique national security problem. As Shane Harris at "The Washington Post" writes, all presidents exit the office with valuable national secrets in their heads, including the procedures for launching nuclear weapons, intelligence-gathering capabilities, including assets deep inside foreign governments and the development of new and advanced weapons systems.
According to Harris, current and former officials are now starting to worry that Trump could expose even more state secrets as soon as he leaves the White House. In fact, experts have not ruled out, quote, that he might trade secrets, perhaps in exchange for favors to ingratiate himself with prospective clients in foreign countries or to get back at his perceived enemies.
"The Post" adds, when he leaves office, Trump will be facing a crushing amount of debt, including hundreds of millions of dollars in loans that he has personally guaranteed, end quote.
Now, given that and the president's track record, it sure makes you wonder what's in store after January 20th. As Rachel says, watch this space.
That does it for us tonight. We'll see you again tomorrow.
It's time now for "THE LAST WORD" with my good friend, Lawrence O'Donnell.
Good evening, Lawrence.
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